Matt Yglesias Is Wrong About Copyright

And I will prove it. By eating his lunch.

I'd like to eat Matt Yglesias' lunch. He's been writing about copyright a fair amount lately, and I've written a little on the subject myself, and I'm beginning to suspect he wouldn't mind.

Last week, for example, Yglesias belittled the damage of online piracy with this rationale:

Even when copyright infringement does lead to real loss of revenue to copyright owners, it’s not as if the money vanishes into a black hole. Suppose Joe Downloader uses Bit Torrent to get a free copy of Beggars Banquet ...,and then goes out to eat some pizza. In this case, the Rolling Stones’ loss is the pizzeria’s gain and Joe gets to listen to a classic album. It’s at least not obvious that we should regard this, on balance, as harmful.

That's quite a line of argument, and I don't think Yglesias has really taken it as far as it could go. So let me take it from him, as it were, and go further. If I were to visit the Slate cafeteria, sit in Yglesias' chair, and eat his lunch, it's not as if the money that I failed to spend on a lunch of my own would vanish into a black hole. No! The economy will not suffer! Yglesias, after all, will have paid for the lunch I ate, and the money that I didn't spend would still be in my pocket or my checking account or whatever. So I could take that money and spend it on, say, the new Shins album. Now I can afford vinyl! Flourish, Keynesian multipliers, flourish!

Oh, but Caleb, you will say. A lunch is different than an electronic copy of a work of art. And I would answer, Yes, that's true, but that's a separate issue, which I'll get to in a moment. The rationale quoted above depends in no way on the nature of what is taken. It's merely a claim that the economy-boosting spending potential of a thief is not necessarily impaired by his theft, and it can justify, or at least minimize the harm of, the theft of anything, abstract or concrete. It depends in no way on the nature of what is taken. Let's try taking Yglesias' laptop, for example. Here we go. ... Great! Now I have a new laptop. And the money that I was going to spend upgrading mine, I'm now free to spend on a new bicycle! Somebody in Portland will hand-make it, probably. A hipster has been given a job! Yglesias' laptop is my new bicycle! The Internet is so much fun.

Now let's consider the nature of what's being taken more carefully. As Yglesias himself put it, in a different post,

If I steal your car then you don't have a car anymore, whereas if I duplicate a digital media file we both end up with it.

By about two centuries, Immanuel Kant anticipated this point. As I explained in a review-essay on copyright that appeared in the National a couple of years ago, Kant addressed this quandary in the 1780s:

It turns out that Kant didn't think that an author could mount a strong legal case against piracy based on property rights in words. After all, even after pirates copied an author's words, the author himself still had them. It was better for an author to argue that his book was not an object but an exercise of his powers, which "he can concede, it is true, to others, but never alienate". In other words, ... a pirated book was not to be understood as property that had been stolen; it was rather a speech act that had been compromised. The business arrangement that an author made with an editor might make it look as if words could be traded like watches or pork bellies, but it just wasn't so.

Alas, Kant's concern for the moral rights of authors represents a path that American law, at least, did not take. Unlike Kant, we don't worry so much today about protecting the authenticity and moral integrity of a speech act; we focus on the money the author is or isn't making. Perhaps we should worry about integrity, though. If I find an essay of mine reprinted without permission on a link-whoring site, I do feel rage. I know I should be above it; I know that the economic damage to me is zero or near-zero. But I don't like it that my work is being exploited by dubious strangers.

Let me suggest an analogy. Suppose I were to start claiming that I'd been awarded a Purple Heart. (The truth is that I have never even served in the military.) I wouldn't be taking anyone else's Purple Heart away. The award is felt to be valuable, but it doesn't have a clear price, and probably no one could prove that I had gained money by my false claim. Nonetheless most people would be likely to agree that by such a lie I would be harming soldiers who had rightfully earned the award. This example may seem too heavy, morally speaking, as I'm willing to admit, but I think it does prove at least this much: Whether it is right to take a thing from a person does not depend on whether it is abstract, and does not depend on whether the original owner is thereby deprived of his possession. A lighter example: sneaking into a half-empty movie theater through the exit. True, it's not a felony, but it is wrong. If they catch you, they do call your parents.

Since this is America, let me try once more to talk about the theft of art in terms of money. As Kant and Yglesias have observed, it won't quite do to define the property being stolen as merely a set of words (or bits). A good enough definition, perhaps: What you're stealing is the particular copy that might have been sold to you. Yglesias notes that it isn't correct to assume that every act of piracy "represents a lost sale." But it doesn't represent nothing, either. You pirated the work because you wanted it, so it did have some value to you.

Attacking from another angle, Yglesias suggests that illegal piracy reduces "deadwight loss," an economic term of art for the value lost to the market when prices aren't set merely by the intersection of supply and demand curves. If the government subsidizes corn, the resulting increase in corn-syrup-sweetened colas drunk is a deadweight loss. If the government grants Farrar Straus a monopoly on the sale of Elizabeth Bishop's poems, fans of hers who can't afford the monopoly price will have to forgo buying a collection—and the pleasure they won't have is another deadweight loss. This sounds like math, but if I've understood correctly (and I might not have, not being an economist), it's little more than a restatement of copyright's definition. As Yglesias himself concedes, "the whole point of copyright is that the owner of the rights ... has a monopoly on sales." Uh, yeah. That is the idea. To say you approve of copyright infringement because it reduces deadweight loss, therefore, is a little like saying you approve of tax evasion because it reduces the market-distorting appropriation of citizens' money by the government.

According to the Constitution, the purpose of copyright is "to promote the progress of Science and useful Arts." For that purpose I'm willing to not only eat Yglesias' lunch but cash his paycheck, too. Jeffrey Rosen of the New Republic recently suggested that "There is certainly a price below which authors and journalists won’t produce good work in the first place." Sure, answered Yglesias, and "the price is almost certainly negative." In other words, Yglesias thinks that writing, music, film, and television can prosper as hobbies—that in the copyright-free future, people might even pay for the privilege of writing and creating. Corporate bean counters of Slate! Did you read this? You have on your hands an economics experiment begging to happen. Mail me a fraction of Yglesias' paycheck, increasing the fraction from week to week. If he's wrong, we'll eventually cleave the heart of the mystery that is the "price below which authors and journalists won't produce good work." If he's right, though, he'll never blink. He might even start paying you.

For my part, I promise to spend whatever you send with the purest market efficiency.

Caleb Crain is the author of the novel Necessary Errors, which will be published by Penguin in August.

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